Bombay High Court
Ashok Pandurang Kulkarni vs Parshuram Narhar Joshi on 24 June, 2002
Equivalent citations: 2003(1)MHLJ334
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. These writ petitions take exception to the Judgment and Decree passed by the 4th Additional District Judge, Satara dated January 21, 1998 in Regular Civil Appeal No. 618 of 1994. The petitioner in Writ Petition No. 1154 of 1998 and respondent in Companion Writ Petition No. 1276 of 1998 is tenant. Whereas, petitioner in Writ Petition No. 1276 of 1998 and respondent in Writ Petition No. 1154 of 1998 is the landlord. The premises in question are situated at C.S. No. 355, Yadogopal Peth, Satara. The landlord instituted a suit for possession against the tenant before the Court of the Civil Judge, J.D., Satara being Regular Civil Suit No. 489 of 1992 on the ground of bona fide requirement and default. The trial Court decreed the suit filed by the landlord on both the counts. The trial Court while answering the issue no. 4 pertaining to the ground of default held that the tenant was a monthly tenant and was a defaulter. Therefore, the trial Court passed a conditional decree permitting the tenant to pay the arrears of Rs. 15,600/- with interest at the rate of 9% p.a. on or before 31-12-1994. The trial Court observed that if the said amount was deposited as directed, decree on the ground of default cannot be proceeded. The trial Court, however, also decreed the suit on the ground of bona fide requirement and directed delivery of possession to the landlord. Being dissatisfied by the decree for possession ordered by the trial Court the tenant filed appeal before the District Court being Regular Civil Appeal No. 618 of 1994 challenging the decree on the ground of bona fide requirement as also finding relating to default, whereas the landlord fifed Cross Objection assailing the conditional decree passed by the trial Court in respect of the ground of default of allowing the tenant to pay the entire arrears of rent after the date of disposal of the suit to future date. The Appellate Court considered the appeal preferred by the tenant as well as the Cross Objection filed by the landlord together. The Appellate Court by common judgment and order dated January 21, 1998, which is impugned in this writ petition dismissed the appeal preferred by the tenant. The Appellate Court was pleased to reverse the finding of bona fide and reasonable requirement. But in so far as the ground of default is concerned, the Appellate Court has held that default has been established and in the fact situation of the present case the trial Court was obliged to decree the suit on the ground of default. Inasmuch as admittedly the tenant did not deposit the entire arrears then due before the first date of hearing of the suit nor moved any formal application in that behalf. As a consequence of which the court had no option but to decree the suit against the tenant on the ground of default, having regard to the mandate of Section 12(3) read with Section 12(4) and explanation (1) thereto of the Bombay Rent Act. Accordingly the appeal preferred by the tenant came to be dismissed, whereas the Cross Objection filed by the landlord was allowed, which decision is the subject matter of challenge in these writ petitions. The landlord has filed separate writ petition No. 1276 of 1998 challenging the finding with regard to the issue of bona fide requirement and comparative hardship. During the pendency of the present writ petition, application has been filed by the landlord being Application No. 4122 of 2000 inter-alia pointing out that the tenant has already acquired alternate residential premises and further he has stopped using the demised premises for his residence. However, I am not addressing myself to that aspect of the matter nor considering the issue of bona fide requirement though the landlord has challenged the finding of the Appellate Court by separate writ petition. Inasmuch as in my view the landlord is bound to succeed on the ground of default on which the Appellate Court has decreed the suit.
2. Insofar as the issue of default is concerned, the relevant established facts are that the tenant was a monthly tenant in respect of the demised premises and was in arrears between 1-6-1989 to 31-5-1992. It is in this background the landlord issued demand notice on 29-6-1992 calling upon the tenant to pay the arrears and also terminated the tenancy. This notice was duly served on the tenant on 30-6-1992. In spite of this demand notice since no payment was offered to the landlord, the landlord instituted suit for possession on 17-9-1992 on the aforesaid two grounds viz. default as well as bona fide requirement. It is not in dispute that issues came to be framed in this suit on 17-6-1994, which is stated to be the first date of hearing of the suit. It is also not disputed that much thereafter the tenant for the first time filed an application Exh. 20 on 4-10-1994 requesting the Court to permit him to deposit the arrears of rent. In this background the trial Court in its decision dated 28-10-1994 held that the tenant was a defaulter but then passed a conditional decree permitting the tenant to deposit the arrears of rent of Rs. 15,600/- with interest at the rate of 9% p.a. on or before 31-12-1994. The trial Court has observed that if such deposit is made as directed then the decree on the ground of default could not be proceeded. Further, it is also not in dispute that the tenant did not deposit the amount within the said period granted by the trial Court, but instead proceeded to file an appeal on 15-12-1994; and, in that appeal persuaded the Appellate Court to give him extension of time to deposit the amount. The Appellate Court on 15-12-1994 extended the time for depositing the said amount as ordered by the trial court upto 21-1-1995. Just before the expiry of that period the tenant deposited the entire amount as directed by the trial Court on 20-1-1995. In this backdrop the matter was considered by the Appellate Court. The Appellate Court has held that since the tenant did not deposit the entire arrears then due on the first day of hearing of the suit nor made any formal application within the meaning of Section 12(3) of the Act before that date, the decree for possession against such a tenant on the ground of default was inevitable. There is no reason to doubt this position.
3. The learned Counsel for the tenant, however, contends that the trial Court by order dated 20-10-1994, while finally disposing of the suit, had granted time to deposit the arrears along with interest at the rate of 9% p.a. till 31-12-1994. It is, therefore, submitted that the Appellate Court was completely wrong in proceeding on the assumption that the tenant was a defaulter as indisputably he had deposited the amount before the time prescribed by the Court. The learned Counsel further contends that protection under Sub-section (3) of Section 12 would be available to the tenant till the suit is finally decided and appeal being continuation of the suit, the payment made by the tenant on 20-1-1995 should be held to be substantial compliance of Sub-section (3). The learned Counsel submits that Sub-section 12(3) should be interpreted liberally, for the said provision has been introduced as beneficial legislation for the benefit of the tenants. On the other hand, according to Mr. Shah for the landlord, the question posed by the tenant is squarely answered by the decision of this Court dated 16-3-2002 in Writ Petition No. 3720 of 2001 in the case of Smt. Shamshadbegam Unus Inamdar v. Aminasaheb Bandgisaheb Mokashi (since reported in 2002(4) Mh.L.J. 499). This decision has considered several other decisions including the latest decision of the Apex Court.
4. After careful examination of the records and the judgment of the Courts below including the decision relied upon by the learned Counsel for the landlord I have no hesitation in concluding that the issue is squarely covered against the tenant by the unreported decision of this Court referred to above. In that case the question posed by the learned single Judge was as under :--
"Whether under Section 12(3) as amended by the Act of 1987 the tenant can deposit or apply to deposit even after framing of the issues but before judgment the arrears of rent and if so done whether the tenant would be entitled to the benefit of Section 12(3) of the Act".
This Court after adverting to the gamut of case law on the subject, including the decisions referred to by the Counsel for the tenant [ and (FB)], has held that from the language of Sub-section (3) of Section 12 of the Act, the tenant is obliged to pay the entire arrears before the first date of hearing of the suit. It is further observed that the application for deposit within the meaning of Section 12(3) of the Act should be moved before the Court before the first date of hearing of the suit. While taking this view, the Court has also adverted to the recent unreported decision of the Apex Court dated March 5, 2002 in Vasant Ganesh Damle v. Shrikant Trimbak Datar and Anr. in Civil Appeal No. 1338 of 2002. In the present case, the first date of hearing of the suit was 17-6-1994, whereas the application Exh. 20 on which reliance has been placed by the tenant was filed only on 4-10-1994. As such that is of no consequence. It is also not in dispute that the entire arrears then due were not deposited in Court or made over to the landlord on or before the first date of hearing of the suit. Understood thus, the Court had no option but to decree the suit under Section 12(3) of the Act. The Appellate Court was therefore right in observing that the amount deposited on 20-1-1995 in court by the tenant would not extricate him from the ground of default within the meaning of Section 12(3) of the Act.
5. Accordingly petition filed by the tenant is devoid of merits and the same is dismissed with costs. Rule discharged.
6. Insofar as the Writ Petition filed by the landlord challenging the finding of the Appellate Court with regard to the issue of bona fide requirement is concerned, to my mind, it is not necessary to go into that question as the landlord has succeeded in getting the decree for possession on the ground of default. In the circumstances, contentions raised in this petition at the instance of landlord, insofar as ground of bona fide requirement and comparative hardship are concerned, the same are left open. I am also not examining the grievance made in Civil Application No. 4122 of 2000 filed by the landlord. Accordingly, that Writ Petition as well as Civil Application disposed of. Ordered accordingly.
Certified copy expedited.